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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
NARENDRA KUMAR VYAS, J.
Jhunni Bai D/o Bishambhar – Appellant
Versus
Ram Bharosa alias Bharosa S/o Kanwali Ram Bhoi – Respondent
Second Appeal No. 240 of 2009
Decided On : 25-04-2022
Civil Procedure Code, 1908 - Section 100 - Hindu Succession Act, 1956 – Joint Hindu family - Suit for declaration and injunction - 1/4th share – Legal Heirs - Devolution of property of intestate on the heirs- Plaint averments, in brief, are that plaintiffs have filed civil suit before Second Civil Judge, for declaration and injunction contending that suit property recorded in name of defendants - It has been contended that Plaintiff’s father were three brothers was wife of died issue-less - Plaintiffs are legal heirs of Kanwali and defendants No. 1 and 2 are legal heirs - Plaintiffs and defendants are member of joint Hindu family as such they are governed by Act, 1956 - There was no partition with regard to suit property, therefore suit property is in joint possession of plaintiffs as well as defendants - Held, It is crystal clear that both courts below have committed illegality in not considering Ex.D/1 and D/2 as if it is document of partition which provide for effective division of property in future, therefore it is not required to be registered under Section 17(2)(V) of the Registration Act. Learned Courts below have also not applied test which is required to see whether documents shall be registered if the document itself does not create right of interest over immovable property but merely creates right to obtain other documents when executed creates right to person claiming relief - It is held that finding recorded by learned trial Court, affirmed by appellate court to that extent that plaintiffs and defendants are entitled to get 1/4th share is legal, justified and does not call for interference but it is held that substantial question of law framed by this court is answered in favour of appellant - Appeal is dismissed.
JUDGMENT :
NARENDRA KUMAR VYAS, J.
1. The appellant/defendant No. 2 has filed the Second Appeal under Section 100 of the C.P.C. challenging the judgment and decree dated 27.01.2009 passed by the learned Additional District Judge, (F.T.C.) Balod District-Durg in Civil Appeal No. 08-A/2007, by which learned Additional District Judge, Balod has dismissed the appeal affirming the judgment and decree dated 20.12.1999 passed by the Second Civil Judge Class-2, Balod, District-Durg in Civil Suit No. 229-A/98 by which learned Second Civil Judge Class-2 has allowed the suit in part by declaring that plaintiffs after death of Kachra Bai are entitled to get 1/4th share in the suit property.
2. The appeal was admitted on 03.07.2020 on the substantial question of law which was further modified on 05.07.2021 and the substantial question of law has been reframed as under:
3. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 229-A/98.
4. The plaint averments, in brief, are that plaintiffs have filed civil suit before the Second Civil Judge, Class II, Balod, District-Durg 13.08.1998 for declaration and injunction contending that the suit property situated at village Kharwahi, Tahsil-Gurur bearing Khasra No. 246 area 0.72 R.A. recorded in the name of defendants No. 1 and 2. It has been contended that Plaintiff’s father Rambharosa were three brothers namely Kanwali, Bishambhar and Punau. Kachra Bai was wife of Punau. Punau died issue-less on 25.08.1995. Plaintiffs are legal heirs of Kanwali and defendants No. 1 and 2 are legal heirs of Bishambhar. Plaintiffs and defendants No. 1 and 2 are member of the joint Hindu family as such they are governed by Hindu Succession Act, 1956. There was no partition with regard to the suit property, therefore, the suit property is in joint possession of plaintiffs as well as defendants No. 1 and 2. Father of the plaintiffs and defendants No. 1 and 2 have inherited the property from their father and after death of father of the plaintiffs and defendants No. 1 and 2, they have succeeded. Due to death of Punau as he was issueless the property was recorded in the name of Kachra Bai. Kachra Bai also died in the year 1996. Plaintiff left the village for livelihood, but used to come to village for agricultural work. When the plaintiff No. 1 Rambharosa came to know that Kachra Bai has expired, he went to Revenue Office for deleting the name of Kachra Bai, then he came to know that mutation process is going with regard to suit property before the Tahsildar, Gurur wherein his name was deleted. The plaintiff-Rambharosa raised objection that without his knowledge defendants No. 1 and 2 have deleted his name from revenue record, therefore, he requested that along with name of defendants No. 1 and 2 his name shall also be recorded in the revenue record. The revenue Court has passed the order against the plaintiff Rambharosa on 22.09.1997, against which he preferred an appeal, which has also been rejected. This has caused adverse effect to the interest of the plaintiff, therefore, he has filed the suit. It is further contended that suit property was never divided, therefore, plaintiffs are entitled for ½ share of the suit property. Defendants No. 1 and 2 have illegally taken possession, therefore, it may kindly be declared that they are entitled for ½ share of the suit property.
5. The defendants No. 1 and 2 filed their written statement denying the allegations made in the plaint contending that with regard to the disputed property partition has already been taken place on 20.03.1971 in presence of the Panchayat where father of the plaintiffs had given written consent. The plaintiffs’ father had executed an agreement on 13.02.1978 relinquishing his share in favour of
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